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RUTH F. PERRY v. STEPHEN C. PERRY

(SC 18942)

(SC 18993)

(SC 18994)

Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.

Argued December 5, 2013—officially released July 22, 2014

Alexander J. Cuda, with whom was Arnold H. Rutkin, for the plaintiff in error in Docket No. SC 18942,

appellant in Docket No. SC 18994, and appellee in

Docket No. SC 18993 (Catherine P. Whelan).

Barbara M. Schellenberg, with whom was Richard

L. Albrecht, for the defendant in error in Docket No. SC

18942, appellee in Docket No. SC 18994, and appellant in

Docket No. SC 18993 (defendant).
Opinion

EVELEIGH, J. The present appeals and writ of error

arise from a dissolution action in which Catherine P.

Whelan, the plaintiff in error, was appointed as the

attorney for the minor children of Stephen C. Perry, the

defendant in the dissolution action and the defendant in

error, and Ruth F. Perry, the plaintiff in the dissolution

action.1 Whelan brings the writ of error, Docket No. SC

18942, in her personal capacity, and the appeal, Docket

No. SC 18994, in her capacity as the attorney for the

minor children, claiming that she was entitled to

recover the entirety of certain fees that she owed to

another attorney, Arnold H. Rutkin, who represented

her in a postjudgment proceeding. The defendant filed

a separate appeal, Docket No. SC 18993, from the order

of the trial court that required him to pay a portion of

Rutkin’s fees. The two appeals and the writ of error

were subsequently consolidated by this court.

Whelan asserts that the trial court improperly: (1)

denied the motion for permission to appeal brought in

her capacity as the attorney for the minor children; and

(2) ordered the defendant to pay only a portion of the

reasonable fees for her counsel in the postjudgment

dissolution proceeding in which the defendant challenged the fees Whelan charged as attorney for the

minor children. Specifically, Whelan claims that she

was entitled to recover the entire cost of Rutkin’s representation either under General Statutes § 46b-622 or as

a result of her claim that the defendant had engaged

in certain litigation misconduct. In his appeal, the defendant claims that the trial court improperly required him

to pay a portion of Rutkin’s fees pursuant to § 46b-62.

We conclude that: (1) Newman v. Newman, 235

Conn. 82, 100, 663 A.2d 980 (1995), should not be overruled and, therefore, an attorney for the minor children

in a dissolution action may file an appeal only if the

court determines that an appeal is in the best interests

of the children; (2) the trial court did not abuse its

discretion in concluding that an appeal was not in the

best interests of the minor children and, therefore, properly denied Whelan’s motion for permission to appeal

on their behalf; (3) this court has jurisdiction to hear

Whelan’s writ of error because she is an aggrieved nonparty pursuant to the requirements of Practice Book

§ 72-1; (4) § 46b-62 does not authorize an award for the

attorney of the attorney for a minor child; and (5) the

trial court failed to apply the proper standard to Whelan’s claim of litigation misconduct. Accordingly, we

affirm the judgment of the trial court as it relates to

the denial of Whelan’s motion for permission to appeal,

and reverse the judgment of the trial court as it relates

to both the award of Rutkin’s fees pursuant to § 46b62 and Whelan’s claim of litigation misconduct. Consequently, we remand the case with direction to deny

Whelan’s motion seeking to recover Rutkin’s fees pursu-
ant to § 46b-62 and to conduct further proceedings consistent with this opinion on the issue of litigation

misconduct.

The relevant facts and procedural history are set forth

in the Appellate Court opinion in the related case, Perry

v. Perry, 130 Conn. App. 720, 722–23, 24 A.3d 1269

(2011). ‘‘In a complaint filed January 9, 2006,the plaintiff

. . . alleged that her marriage to the defendant . . .

had broken down irretrievably and sought dissolution

of their marriage, an order regarding custody and support of their two minor children, alimony, educational

support orders and attorney’s fees.3 The child custody

and financial issues were bifurcated for trial. On April

9, 2008, the court, Dewey, J., approved and entered, as

an order, a custody and parenting time stipulation (stipulation).

‘‘On August 11 and 12, 2008, a trial was held to resolve

the parties’ financial issues. During that trial and in her

proposed orders, the plaintiff requested that the court

correct the custody stipulation, which allegedly had

misstated the [defendant’s] weekend visitation rights.

The defendant did not oppose the plaintiff’s request.

Indeed, through his attorney, he acknowledged that the

stipulation contained a scrivener’s error in assigning

weekend visitations to the [defendant] for every weekend rather than every other weekend. Furthermore, in

response to questioning by the court, the defendant

stated, consistently, that he had parenting time with

the children every other weekend.

‘‘On November 26, 2008, the court, Gordon, J., rendered judgment dissolving the parties’ marriage. The

judgment incorporated the uncorrected custody stipulation, ordered alimony and child support, divided the

parties’ assets and ordered that attorney’s fees for both

parties be paid from a designated brokerage account.

In addition, the court ordered the defendant to indemnify the plaintiff for ‘any and all future claims, demands

and/or suits with respect to any federal, state or municipal income tax claims for any year in which the parties

filed a joint income tax return . . . .’

‘‘On July 2, 2009, the plaintiff filed an ex parte motion

for an order and to clarify postjudgment, alleging that

the defendant had notified her of his intention to begin

exercising his visitation rights to have the children every

weekend pursuant to the uncorrected custody stipulation. The plaintiff asked the court to clarify its decision

to allow her to have parenting time every other weekend, including the weekend of July 3, 4 and 5, 2009.

The court, Schofield, J., ordered that the plaintiff have

parenting time for that weekend and set a date for a

hearing on the clarification issue.

‘‘Thereafter, on July 27, 2009, the plaintiff filed a

motion to open on the grounds of a scrivener’s error

or mutual mistake with respect to the parenting time
as expressed in the stipulation. The plaintiff alleged

that, at all times between the institution of the action

and July, 2009, the defendant had exercised his right to

parenting time with the children every other weekend.

Furthermore, she argued that other paragraphs in the

stipulation were inconsistent with the defendant’s having parenting time every weekend. On January 5, 2010,

the defendant filed an objection and motion to dismiss

the plaintiff’s motion to clarify and to open the

judgment.

‘‘At a hearing on the proposed clarification, held on

January 5, 2010, the court, Shay, J., determined that the

motion for clarification should be addressed to Judge

Gordon. In response, on January 25, 2010, Judge Gordon

issued a clarification, sua sponte, that the . . . stipulation, as incorporated into the court’s November, 2008

memorandum of decision, should have read: ‘The minor

children shall be with the [defendant] every other Friday

from 4:00 p.m. until Sunday at 8:00 p.m.’ ’’ (Emphasis

in original; footnote added.) Id.

The defendant then appealed to the Appellate Court

claiming that the trial court improperly modified the

judgment of dissolution by issuing the clarification that

the defendant’s parenting time should be every other

weekend. Id., 723–24. The Appellate Court rejected the

defendant’s claim and affirmed the judgment of the trial

court clarifying the visitation order. Id., 734.4 During

these postjudgment proceedings, Whelan continued to

serve as the attorney for the two minor children.

Whelan then filed a motion seeking payment of outstanding fees for the period of May 4, 2009 through

November 22, 2010, a retainer going forward and an

allowance to participate in the appeal that was then

pending before theAppellate Court. The defendant challenged Whelan’s fees and costs.

As a result, the trial court held a hearing on the

matter. At the hearing, Whelan petitioned the trial court

for additional counsel to represent her at the hearing

and, in addition to her own fees as the attorney for

the minor children, for the fees she would incur to be

represented at the hearing to be paid by the parties.

After hearing argument from the parties, the trial court

granted Whelan’s motion for representation, but

reserved ruling on the issue of whether it could award

the legal fees incurred by her for Rutkin’s representation in connection with the hearing.

Whelan was represented by Rutkin during the five

day hearing on her fees as the attorney for the minor

children. We observe that this appears to be an inordinately long time, particularly when defense counsel initially observed that he needed one hour. Thereafter, the

trial court determined that the $33,883.26 outstanding

balance of fees was reasonable under all the circumstances. The trial court ordered the defendant to pay
75 percent of the outstanding balance and the plaintiff

to pay 25 percent of that balance. The trial court also

required the parties to pay Whelan a retainer in the

amount of $10,000 for continued representation of the

minor children, including participation in the appeal

that was then pending before the Appellate Court. The

defendant was ordered to pay 75 percent of the retainer

and the plaintiff was ordered to pay 25 percent of

the retainer.

The trial court conducted a separate hearing related

to Whelan’s claim that she was entitled to counsel fees

to pay for Rutkin’s representation. Whelan also moved

for sanctions and attorney’s fees based on the defendant’s litigation abuses and misconduct postjudgment,

claiming that the defendant had engaged in bad faith

litigation by making a baseless challenge to her fees as

the attorney for the minor children. In response, the

defendant moved to dismiss Whelan’s motion and

objected to the imposition of sanctions.

The trial court granted Whelan’s motion regarding

attorney’s fees in part. The trial court determined that

under § 46b-62,5 Whelan was entitled to ‘‘a portion of the

attorney’s fees incurred by her, limited to the defense of

her conduct, which the court finds to be within the

scope of her core function, with the balance to be

absorbed by her as part of the cost of doing business

(i.e. the collection of her fee).’’ The trial court further

found that ‘‘much of the [defendant’s] challenge was,

by his own testimony due in large measure to his challenge to [Whelan’s] conduct . . . .’’ Accordingly, the

trial court awarded Whelan 40 percent of Rutkin’s fees

and ordered that sum to be paid by the defendant

because he was the only one who challenged Whelan’s fees.

The trial court then denied Whelan’s motion for sanctions and attorney’s fees for alleged litigation abuses

and misconduct. As the basis for denying Whelan’s

motion, the trial court determined that the defendant’s

conduct did notrise to the level of ‘‘ ‘egregious litigation

misconduct’ ’’ under Ramin v. Ramin, 281 Conn. 324,

357–59, 915 A.2d 790 (2007).

Thereafter, Whelan filed a motion for permission to

file an appeal on behalf of the minor children. The trial

court denied that motion, from which Whelan appealed

to the Appellate Court. Whelan then filed the present

writ of error before this court. Finally, the defendant

appealed to the Appellate Court from the judgment of

the trial court ordering him to pay 40 percent of Rutkin’s

fees. We transferred the appeals pending before the

Appellate Court to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. The writ of

error and the two appeals were then consolidated.

I

Whelan first claims that this court should overrule
Newman v. Newman, supra, 235 Conn. 82, in which

this court concluded that an attorney for the minor

children in a dissolution action may file an appeal only

if the court determines that an appeal is in the best

interests of the children. As grounds for her claim,

Whelan asserts that this court should reconsider Newman because, since that case was decided, this court

has recognized thatthe role of the attorney forthe minor

children is frequently blurred with that of a guardian ad

litem and must always be guided by the best interests

of the children. In response, the defendant asserts that

Newman should not be overruled because its reasoning

and rationale is still applicable today. We agree with

the defendant.

In Newman v. Newman, supra, 235 Conn. 83, this

court directly considered the issue that Whelan asks us

to reconsider today—namely, ‘‘whether, in a marriage

dissolution case, minor children who are represented

by an attorney appointed by the trial court pursuant to

General Statutes § 46b-54, but not by a guardian ad

litem or next friend, may appeal from a judgment of

the trial court . . . .’’ (Footnote omitted.) In Newman,

the judgment of the trial court from which the minor

children sought to appeal involved the support obligations of the children’s parents. Id.

Today, we review the same standards considered in

Newman. In considering the minor children’s claim, this

court examined the established principles governing the

right to bring an action and appeal in dissolution

actions: ‘‘The right to appeal is purely statutory, and

only an aggrieved party may appeal. Durso v. Misiorek,

200 Conn. 656, 660, 512 A.2d 917 (1986). In the context

of dissolution actions, only those who were parties to

the underlying dissolution action may appeal. Bergeron

v. Mackler, 225 Conn. 391, 391–92 n.1, 623 A.2d 489

(1993). Moreover, [o]rdinarily, the term party has a technical legal meaning, referring to those by or against

whom a legal suit is brought . . . the party plaintiff or

defendant . . . . Lieberman v. Reliable Refuse Co.,

212 Conn. 661, 669, 563 A.2d 1013 (1989). We implicitly

have recognized that definition to exclude the minor

children of parents involved in a dissolution action,

absent some additional effort to make the children formal parties to that action. Salvio v. Salvio, [186 Conn.

311, 324, 441 A.2d 190 (1982)].’’ (Internal quotation

marks omitted.) Newman v. Newman, supra, 235

Conn. 94.

‘‘Furthermore, the general rule is well established

that ‘a child may bring a civil action only by a guardian

or next friend, whose responsibility it is to ensure that

the interests of the ward are well represented. Cottrell

v. Connecticut Bank & Trust Co., 175 Conn. 257, 261,

398 A.2d [307] (1978); Collins v. York, 159 Conn. 150,

153, 267 A.2d 668 (1970). When a guardian has been

appointed to protect the interests of a child, the guard-
ian is usually the proper person to bring an action on

behalf of the child. Williams v. Cleaveland, 76 Conn.

426, 434, 56 A. 850 (1904). There are, however, certain

exceptional circumstances; Cottrell v. Connecticut

Bank & Trust Co., supra, 263; when a child may properly

sue by next friend, notwithstanding the existence of

such guardian, as when the guardian is absent, or is

unwilling or unable to institute or prosecute the

required action or appeal, and especially when, though

declining to take such action himself, he does not forbid

such proceeding, or when he is disqualified by interest

hostile to that of the infant, or is for other reasons

an improper or unsuitable person to prosecute such

actions on behalf of the ward. Williams v. Cleaveland,

supra, 432. Although generally a person who brings an

action as next friend need not obtain prior authorization

from the court to do so; id., 433; McCarrick v. Kealy,

70 Conn. 642, 646, 40 A. 603 (1898); the court must

determine whether the person seeking to represent the

child as next friend is a proper or suitable person to

make a claim on behalf of the child. Williams v.

Cleaveland, supra, 433–34; McCarrick v. Kealy, supra,

646.’ . . . Orsi v. Senatore, 230 Conn. 459, 466–67, 645

A.2d 986 (1994).’’ Newman v. Newman, supra, 235

Conn. 95. Having examined the established principles

regarding a minor child’s right to bring an action in the

trial court, this court concluded that it saw ‘‘no reason

not to apply their principles to the right of appeal as

well. As a general matter, there is no reason to afford

a right of appeal greater than a right to sue in the first

instance.’’ Id., 95–96.

In Newman, this court then examined the policy concerns surrounding allowing minor children to bring

appeals in dissolution actions. In doing so, this court

recognized that ‘‘absent special circumstances . . .

there are good reasons not to consider the minor children as ‘parties’ to the dissolution action or to require

that they formally be made such parties. Treating the

children as parties might well force them to choose

sides and thus threaten to exacerbate their already

heavy emotional burden, and would add a level of participation—even if only symbolic in most cases—that

is inconsistent with a wise attempt to shield them as

much as reasonably possible from the legal aspects of

their parents’ conflicts.’’ (Citation omitted.) Id., 96.

On the other hand, in Newman, this court also recognized that ‘‘[a]lthough they are not parties to the underlying dissolution action, it cannot be denied that our

statutes and precedents regarding the appointment of

an attorney to represent their interests in dissolution

proceedings do constitute legislative and judicial recognition that the orders entered by the trial courts in such

proceedings may affect those interests.’’ Id., 97.

On appeal, Whelan encourages us to overrule Newman on the ground that its holding requiring an attorney
for the minor children to seek permission of the court

to file an appeal is no longer supported by the current

understanding of the role of an attorney for the minor

children. Specifically, Whelan asserts that this court

has recently recognized that the role of the attorney

for the minor children and the role of a guardian ad

litem have been blurred by recent precedent, requiring

the attorney for minor children to consider the best

interests of the children. In support of her position,

Whelan cites Carrubba v. Moskowitz, 274 Conn. 533,

546–47, 877 A.2d 773 (2005), in which this court stated

as follows: ‘‘Of course, we recognize that such attorneys

perform a hybrid role because of their simultaneous

duty to function as an advocate for the child. That

function, however, must always be subordinated to the

attorney’s duty to serve the best interests of the child.

Even when an attorney for the minor child functions

less as a guardian ad litem and more as an advocate

because of factors such as the child’s advanced age,

maturity level and ability to articulate her preferences,

the shifting of the balance from an objective evaluator of

the child’s best interests to personal advocate happens

because those factors increase the likelihood that the

child is able accurately to identify and to make choices

to pursue her own best interests independently, without

the aid of an objective assistant to the court. Thus, even

the advocacy role of the appointed attorney for the

minor child may be reconciled with the attorney’s primary duty—to assist the court in serving the best interests of the child.’’

First, it is important to note that the discussion in

Carrubba was in the context of whether an attorney

for minor children was entitled to quasi-judicial immunity. Id., 535. Therefore, in describing the function and

role of the attorney for the minor child, the court in

Carrubba was focused on the similarities to judicial

officers and to what extent the attorney for the minor

child serves the court. Second, the understanding of

the role of an attorney for the minor children expressed

in Carrubba is not inconsistent with the concerns

expressed in Newman. In Newman v. Newman, supra,

235 Conn. 96, this court reasoned as follows: ‘‘Additionally, we are concerned about creating conflict in the

attorney’s role by conflating the role of counsel for a

child with the role of a guardian ad litem or next friend.

Typically, the child’s attorney is an advocate for the

child, while the guardian ad litem is the representative

of the child’s best interests. As an advocate, the attorney

should honor the strongly articulated preference

regarding taking an appeal of a child who is old enough

to express a reasonable preference; as a guardian, the

attorney might decide that, despite such a child’s present wishes, the contrary course of action would be in

the child’s long term best interests, psychologically or

financially.’’ In Carrubba v. Moskowitz, supra, 274

Conn. 547, this court stated: ‘‘[W]e see no reason to
accord appointed attorneys for minor children a lesser

level of immunity than that traditionally accorded to

guardians ad litem, at least in the performance of those

functions that are integral to the judicial process.’’ Both

Newman and Carrubba recognize that, in certain circumstances, an attorney for the minor children must

put the best interests of the children over his or her

role as advocate for the minor children, particularly

where children are not mature enough to make such

decisions on their own.

Moreover, nothing in the rule established in Newman,

requiring the trial court to determine that an appeal is

in the best interests of the minor children, negates the

recognition that an attorney forthe minor children must

consider the best interests of the minor children. It is

merely another safeguard in the system designed to

protect the interests of the minor children in a situation

that ‘‘carries with it significant risks of widening the

fissures in an already sorely tried family . . . .’’ Newman v. Newman, supra, 235 Conn. 96.

‘‘This court has repeatedly acknowledged the significance of stare decisis to our system of jurisprudence

because it gives stability and continuity to our case law.

. . . The doctrine of stare decisis counsels that a court

should not overrule its earlier decisions unless the most

cogent reasons and inescapable logic require it. . . .

Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging,

it saves resources and it promotes judicial efficiency.

. . . It is the most important application of a theory of

decisionmaking consistency in our legal culture and

. . . is an obvious manifestation of the notion that decisionmaking consistency itself has normative value.’’

(Citation omitted; internal quotation marks omitted.)

State v. Salamon, 287 Conn. 509, 519, 949 A.2d 1092

(2008). On the basis of our review of Newman and its

in-depth consideration of the competing policy considerations involved in allowing an attorney for the minor

children to appeal, we cannot conclude that the most

cogentreasons and inescapable logic require us to overrule Newman. To the contrary, we conclude that, in

Newman, this court struck the appropriate balance

between the rights of minor children to appeal and this

court’s well reasoned concerns regarding such appeals.

Accordingly, we decline Whelan’s invitation to overrule Newman.

II

Whelan next claims that, even if this court does not

overrule Newman, the trial court in the present case

improperly denied the children’s motion for permission

to appeal. Specifically, Whelan claims thatthe trial court

improperly determined that it was not in the best interests of the minor children to appeal from the trial court’s

judgment regarding fees for her attorney. In response,
the defendant claims that the trial court did not abuse

its discretion in denying the attorney for the minor

children’s request for permission to appeal because it

properly determined that such an appeal was not in the

bestinterests ofthe children. Specifically, the defendant

asserts that the trial court properly determined that the

appeal would be adverse to the children’s interests and

was too remote. We agree with the defendant.

We begin by setting forth the appropriate standard

of review for considering Whelan’s claim. As this court

explained in Newman v. Newman, supra, 235 Conn.

100 n.17, ‘‘if in a given case the trial court granted or

denied the minor children’s request to prosecute an

appeal without either a guardian ad litem or next friend,

that grant or denial would be subject to review on

appeal under an abuse of discretion standard.’’ See also

id., 104.

In Newman v. Newman, supra, 235 Conn. 103–104,

this court stated as follows: ‘‘Finally, we turn to the

nature of the trial court’s considerations in determining

whether to authorize an appeal under the standards

that we have articulated. Without attempting to limit

the trial court’s examination of all of the available facts

and circumstances regarding whether to authorize an

appeal by minor children from a trial court support

order, we suggest the following as some of those factors: the nature of the particular trial court order at

issue; whether there is likely to be an appeal of the

order, irrespective of that requested by the minor children; the desires of the parent who would otherwise

be an appellant but who does not intend to file such

an appeal, and the reasons for that intention; whether

the particular risks that underlie the general rule are

likely to be realized by permitting such an appeal in

the particular case; the potential for conflicts to arise

between the best interests of the children and their

desire to prosecute the appeal; the good faith of the

attorney making the request for such an appeal on

behalf of the children; the degree to which an appeal

will unduly drain resources that could be better spent

on the children; and whether there is any reasonable

basis for such an appeal. We emphasize that this list is

not exhaustive. The range of factors to be considered

by the trial court is limited only by the applicable standard of the best interests of the children.’’

In the present case, the trial court reasoned as follows: ‘‘I have the Supreme Court telling me you have

to make a finding of [the children’s] best interest[s]. I

am struggling to do that because I believe it is too

remote. This is not a question of fighting over health

insurance for the children or the actual child support

payment for the children, something affecting their education, something affecting their medical treatment.

. . . I said [Whelan gets 40] percent [of Rutkin’s fees].

So this appeal is over the [60] percent I didn’t award
to [Whelan]. And that I found had to do with a collection

. . . . So I am struggling to find that in the best interest[s] of the child[ren]. . . . It’s not a seminal issue

involving . . . these children. And it is a substantial

amount of money that is likely to impact the money

that could go toward these children, to their education,

to their welfare. It is going to get sucked right out of

a family that is not, you know, they are not making

millions. . . . Income is a challenge to both parties in

this case, at least it was in terms of the evidence that

I adduced. So I am going to deny the motion.’’

Our review of the trial court’s denial of Whelan’s

motion for permission to appeal demonstrates that the

trial court properly considered factors enumerated in

Newman v. Newman, supra, 235 Conn. 103–104. Specifically, the trial court considered the nature of the trial

court order at issue, the potential for conflicts to arise

between the best interests of the children and their

desire to prosecute the appeal, and the degree to which

an appeal would unduly drain resources that could be

better spent on the children. We conclude, therefore,

that the trial court considered the proper factors and

did not abuse its discretion in concluding that the appeal

was not in the best interests of the minor children.

III

Having concluded that the trial court did not abuse its

discretion in denying Whelan’s motion for permission

to appeal, we next consider whether this court has

jurisdiction to consider her writ of error. Whelan claims

that if this court affirmed the judgment of the trial court

denying her motion for permission to appeal, this court

would have jurisdiction to consider her claim to her

right to Rutkin’s counsel fees pursuant to a writ of error

under Practice Book § 72-1. In response, the defendant

claims that a writ of error is not proper in the present

case because it would effectively negate the trial court’s

decision. We agree with Whelan.

Practice Book § 72-1 (a) provides: ‘‘Writs of error for

errors in matters of law only may be brought from a

final judgment of the superior court to the supreme

court in the following cases: (1) a decision binding

on an aggrieved nonparty; (2) a summary decision of

criminal contempt; (3) a denial of transfer of a small

claims action to the regular docket; and (4) as otherwise

necessary or appropriate in aid of its jurisdiction and

agreeable to the usages and principles of law.’’

We first address whether the trial court’s order

regarding Rutkin’s fees is an appealable final judgment

because it implicates this court’s subject matter jurisdiction over Whelan’s writ of error. See, e.g., State v.

Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983)

(‘‘[b]ecause our jurisdiction over appeals . . . is prescribed by statute, we must always determine the

threshold question of whether the appeal is taken from
a final judgment before considering the merits of the

claim’’). We conclude that the trial court’s order regarding Rutkin’s fees constitutes an appealable final judgment under Curcio.

‘‘Curcio is the foundational case governing whether

an otherwise interlocutory order is appealable. A trial

court’s ruling may be appealed if it (1) ‘terminates a

separate or distinct proceeding,’ or (2) ‘so concludes

the rights of the parties that further proceedings cannot

affect them.’ State v. Curcio, supra, 191 Conn. 31. Writs

of error may be brought only from a final judgment of

the trial court; Practice Book § 72-1 (a); and, therefore,

Curcio must be satisfied.’’ Woodbury Knoll, LLC v.

Shipman & Goodwin, LLP, 305 Conn. 750, 757, 48 A.3d

16 (2012). ‘‘In order to satisfy the second prong of the

Curcio test the [plaintiff in error] must do more than

show that the trial court’s decision threatens [her] with

irreparable harm. . . . For an interlocutory order to

be an appealable final judgment it must threaten the

preservation of a right that the [plaintiff in error]

already holds. The right itself must exist independently

of the order from which the appeal is taken.’’ (Citation

omitted; emphasis added; internal quotation marks

omitted.) Waterbury Teachers Assn. v. Freedom of

Information Commission, 230 Conn. 441, 448, 645 A.2d

978 (1994).

In the present case, Whelan has filed a writ of error

challenging the trial court’s order regarding Rutkin’s

fees, which totaled $55,576. Specifically, the trial court

ordered the defendant to pay 40 percent of the counsel

fees, totaling $22,230, and required Whelan to be responsible for the remaining 60 percent of her counsel’s fees,

totaling $33,346.

The trial court also, however, ordered the plaintiff

and the defendant to pay Whelan $33,883.26 for services

she rendered as the attorney for the minor children. By

ordering the defendant to pay only 40 percent of Rutkin’s fees, Whelan was left to pay the balance of $33,346.

Whelan reasons that, therefore, for the period during

which she was representing the children and Rutkin

was representing her, she would only recover $537.26

of what the court determined that she was legally entitled to.

Under the Curcio analysis, Whelan had an existing

legal right to her own fees, independent of the order

for Rutkin’s fees that she is appealing. The trial court’s

order regarding Rutkin’s fees substantially impaired

that right because, in her view, it effectively reduced

the legal fees awarded to her during the period that she

represented the children. See State v. Curcio, supra,

191 Conn. 34 (to succeed under second prong, appellant

must ‘‘make at least a colorable claim that some recognized statutory or constitutional right is at risk’’).

Whelan could not vindicate her right to her own fees

for representing the children in a separate proceeding
should Rutkin sue her to recover his fees. Accordingly,

the second prong of Curcio is satisfied.

Having concluded that Whelan’s claim satisfies the

second prong of Curcio, we must now address whether

it meets the other requirements of Practice Book § 72-

1 (a) (1)—namely, that it is ‘‘a decision binding on an

aggrieved nonparty . . . .’’ ‘‘It is axiomatic that

aggrievement is a basic requirement of standing, just

as standing is a fundamental requirement of jurisdiction. . . . There are two general types of aggrievement,

namely, classical and statutory; either type will establish standing, and each has its own unique features.’’

(Citations omitted.) Soracco v. Williams Scotsman,

Inc., 292 Conn. 86, 91–92, 971 A.2d 1 (2009).

‘‘Classical aggrievement requires a two part showing.

First, a party must demonstrate a specific, personal and

legal interest in the subject matter of the [controversy],

as opposed to a general interest that all members of

the community share. . . . Second, the party must also

show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest.’’

(Internal quotation marks omitted.) Pond View, LLC v.

Planning & Zoning Commission, 288 Conn. 143, 156,

953 A.2d 1 (2008).

In the present case, the trial court denied Whelan’s

request to require the defendant to pay the entirety

of Rutkin’s fees. As previously stated in this opinion,

because the trial court denied this request, Whelan was

obligated to pay Rutkin $33,346 of the $33,883.26 in fees

she received for serving as the attorney for the minor

children during the postdissolution proceedings.

This court recently considered and granted a similar

writ of error in Francis v. Fonfara, 303 Conn. 292, 33

A.3d 185 (2012). In that case, this court considered a

writ of error by a marshal for fees she charged for

copies of a complaint handled in connection with her

service of process in a civil action pursuant to General

Statutes § 52-261 (a) (2), despite the fact that she did

not personally make the copies. Id., 293–94. Although

this court did not directly address whether the marshal

was aggrieved by the trial court’s denial of those fees, its

consideration and granting of the writ of error indicates

that it considered the marshal to be an aggrieved nonparty and to have met the requirements for a writ of

error under Practice Book § 72-1.

Similar to the marshal in Francis v. Fonfara, supra,

303 Conn. 292, Whelan was an aggrieved nonparty who

met the requirements of Practice Book § 72-1. Therefore, we conclude that this court has jurisdiction to

consider Whelan’s writ of error.

IV

Whelan claims that the trial court improperly determined that she was responsible for part of Rutkin’s fees

under § 46b-62. Specifically, Whelan claims that the trial
court improperly required her to pay 60 percent of Rutkin’s fees, which she incurred due to meritless claims

by the defendant. Whelan further asserts that the trial

court’s determination threatens the independence of

the attorney for the minor children. In his appeal, the

defendant asserts that the trial court improperly

required him to pay any of Rutkin’s fees and that § 46b62 does not authorize such an award.6 We agree with

the defendant and, accordingly, reverse the judgment

of the trial court as it relates to the award of Rutkin’s

fees under § 46b-62.

Our analysis of these claims requires us to interpret

§ 46b-62. We first set forth our standard of review. ‘‘The

issue in this case . . . raises a question of statutory

construction, which is a [question] of law, over which

we exercise plenary review. . . . The process of statutory interpretation involves the determination of the

meaning of the statutory language as applied to the

facts of the case, including the question of whether the

language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give

effect to the apparent intent of the legislature. . . . In

other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied

to the facts of [the] case, including the question of

whether the language actually does apply. . . . In seeking to determine that meaning . . . [we] first . . .

consider the text of the statute itself and its relationship

to other statutes. If, after examining such text and considering such relationship, the meaning of such text is

plain and unambiguous and does not yield absurd or

unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test

to determine ambiguity is whether the statute, when

read in context, is susceptible to more than one reasonable interpretation.’’ (Internal quotation marks omitted.) Sams v. Dept. of Environmental Protection, 308

Conn. 359, 377–78, 63 A.3d 953 (2013).

As this court pointed out in Fennelly v. Norton, 294

Conn. 484, 504–505, 985 A.2d 1026 (2010), § 46b-62 is

in derogation of the common law. Specifically, ‘‘its

enactment in 1973 represented a departure from the

common-law American rule followed in Connecticut,

including in family matters cases, under which ‘attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a

contractual or statutory exception.’ . . . TES Franchising, LLC v. Feldman, 286 Conn. 132, 148, 943 A.2d

406 (2008); see also Murphy v. Murphy, 180 Conn. 376,

380, 429 A.2d 897 (1980). Thus, ‘we are mindful of other

rules of statutory construction applicable when

determining whether a statute has abrogated the common law. [W]hen a statute is in derogation of common

law . . . it should receive a strict construction and is

not to be extended, modified, repealed or enlarged in

its scope by the mechanics of [statutory] construction.
. . . In determining whether or not a statute abrogates

or modifies a common law rule the construction must

be strict, and the operation of a statute in derogation

of the common law is to be limited to matters clearly

brought within its scope.’ . . . Location Realty, Inc. v.

Colaccino, 287 Conn. 706, 724, 949 A.2d 1189 (2008);

cf. Levesque v. Bristol Hospital, Inc., 286 Conn. 234,

262, 943 A.2d 430 (2008) (‘costs are a creature of statute,

and, therefore, a court may not tax a cost unless it is

clearly empowered to do so . . . because statutes in

derogation of the common law are to be strictly construed’ . . .).’’ Fennelly v. Norton, supra, 504–505.

With these principles in mind, we turn to the text of

the statute. Section 46b-62 provides: ‘‘In any proceeding

seeking relief under the provisions of this chapter and

sections 17b-743, 17b-744, 45a-257, 46b-1, 46b-6, 46b212 to 46b-213w, inclusive, 47-14g, 51-348a and 52-362,

the court may order either spouse or, if such proceeding

concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable

attorney’s fees of the other in accordance with their

respective financial abilities and the criteria set forth

in section 46b-82. If, in any proceeding under this chapter and said sections, the court appoints an attorney

for a minor child, the court may orderthe father, mother

or an intervening party, individually or in any combination, to pay the reasonable fees of the attorney or may

order the payment of the attorney’s fees in whole or in

part from the estate of the child. If the child is receiving

or has received state aid or care, the compensation of

the attorney shall be established and paid by the Public

Defender Services Commission.’’

We conclude that the language of the statute is plain

and unambiguous. Section 46b-62 only allows for the

payment of the fees for the attorney for the minor child.

The statute does not contain any language regarding

counsel hired by the attorney for the minor child.

Indeed, the language of § 46b-62 does not even seem

to contemplate that an attorney for a minor child may

hire his or her own counsel during any proceedings

under the statute. ‘‘[I]t is a well settled principle of

statutory construction thatthe legislature knows how to

convey its intent expressly; e.g., Dept. of Public Safety v.

Freedom of Information Commission, 298 Conn. 703,

729, 6 A.3d 763 (2010); or to use broader or limiting

terms when it chooses to do so. See, e.g., Stitzer v.

Rinaldi’s Restaurant, 211 Conn. 116, 119, 557 A.2d 1256

(1989).’’ Scholastic Book Clubs, Inc. v. Commissioner

of Revenue Services, 304 Conn. 204, 219, 38 A.3d 1183,

cert. denied, U.S. , 133 S. Ct. 425, 184 L. Ed. 2d

255 (2012). Therefore, the fact that the legislature only

included language allowing for payment of fees for the

attorney forthe minor children indicates thatthe legislature did not intend to allow payment for counsel hired

by the attorney for the minor children.
We next turn to a related rule of practice, Practice

Book § 25-62A, which provides in relevant part: ‘‘The

judicial authority may order compensation for services

rendered by an attorney for a minor child.’’ Like the

plain language of § 46b-62, Practice Book § 25-62A only

contains language related to services by the attorney for

the minor children, and does not contain any language

related to counsel hired by the attorney for the minor

children. Therefore, the text of Practice Book § 25-62A

also supports the conclusion that a court may only

award fees for the attorney for a minor child and not

fees for counsel hired by the attorney for a minor child.

Whelan asserts that a court must have authority to

award fees for counsel hired by an attorney for the

minor children under § 46b-62 in order to protect the

independence of attorneys for minor children. Specifically, Whelan claims that requiring an attorney for a

minor child to absorb the costs of counsel hired to

assist her in recovering her reasonable attorney’s fees

would interfere with her role as the attorney for minor

the children. Although we recognize that Whelan’s concern is a real one, we are obligated to strictly construe

§ 46b-62. See Location Realty, Inc. v. Colaccino, supra,

287 Conn. 724. Although it may be good public policy

to ensure that attorneys for minor children will not be

forced to incur expense to recover their fees, ‘‘the strict

construction applied to attorney’s fee statutes in derogation of the common-law . . . requires us to defer to

the legislature’s policy making authority on this matter.’’

(Citations omitted.) Fennelly v. Norton, supra, 294

Conn. 504 n.17. This rule of statutory construction further buttresses our holding that the language of the

statute itself is plain and unambiguous.

On the basis of the forgoing, we conclude that § 46b62 does not provide for fees for counsel for the attorney

for the minor children and, accordingly, we reverse the

portion of the judgment of the trial court that orders

the defendant to pay a portion of the fees Whelan

incurred as the result of hiring her own counsel.

V

We next turn to the claims related to litigation misconduct. First, the defendant claims, as an alternative

ground for affirmance, that Whelan lacked standing to

bring a claim of litigation misconduct. Whelan claims

that the trial court improperly applied the standard set

forth in Ramin v. Ramin, supra, 281 Conn. 324, to her

claim for counsel fees. Specifically, Whelan asserts that

the trial court should have applied the standard set

forth in Maris v. McGrath, 269 Conn. 834, 850 A.2d

133 (2004), to her claim of litigation misconduct. In

response, the defendant asserts that, even if the trial

court applied the wrong standard to Whelan’s claim

of litigation misconduct, it was harmless because the

record did not support a finding that the defendant
acted in bad faith. We agree with Whelan.

A

We begin by considering the defendant’s claim that

Whelan lacked standing to bring a claim of litigation

misconduct in the present case because that issue implicates our subject matter jurisdiction. See, e.g., Soracco

v. Williams Scotsman, Inc., supra, 292 Conn. 90.

It is well established that, ‘‘[i]f a party is found to

lack standing, the court is without subject matter jurisdiction to determine the cause. . . . A determination

regarding a trial court’s subject matter jurisdiction is a

question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must

decide whether its conclusions are legally and logically

correct and find support in the facts that appear in

the record.’’ (Internal quotation marks omitted.) Pond

View, LLC v. Planning & Zoning Commission, supra,

288 Conn. 155.

This court has explained that ‘‘[s]tanding is the legal

right to set judicial machinery in motion. One cannot

rightfully invoke the jurisdiction of the court unless he

[or she] has, in an individual or representative capacity,

some real interest in the cause of action, or a legal or

equitable right, title or interest in the subject matter of

the controversy.’’ (Internal quotation marks omitted.)

Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982

A.2d 1053 (2009). ‘‘[S]tanding is not a technical rule

intended to keep aggrieved parties out of court; nor is

it a test of substantive rights. Rather it is a practical

concept designed to ensure that courts and parties are

not vexed by suits brought to vindicate nonjusticiable

interests and that judicial decisions which may affect

the rights of others are forged in hot controversy, with

each view fairly and vigorously represented.’’ (Internal

quotation marks omitted.) Canty v. Otto, 304 Conn.

546, 556, 41 A.3d 280 (2012). ‘‘These two objectives are

ordinarily held to have been met when a complainant

makes a colorable claim of direct injury he has suffered

or is likely to suffer, in an individual or representative

capacity. Such a personal stake in the outcome of the

controversy . . . provides the requisite assurance of

concrete adverseness and diligent advocacy.’’ (Internal

quotation marks omitted.) Pond View, LLC v. Planning & Zoning Commission, supra, 288 Conn. 155.

‘‘Standing [however] requires no more than a colorable

claim of injury . . . .’’ (Internal quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education,

303 Conn. 402, 411, 35 A.3d 188 (2012).

‘‘It is axiomatic that aggrievement is a basic requirement of standing, just as standing is a fundamental

requirement of jurisdiction.’’ Soracco v. Williams Scotsman, Inc., supra, 292 Conn. 91. As we explained in part

III of this opinion, ‘‘[t]here are two general types of

aggrievement, namely, classical and statutory; either
type will establish standing, and each has its own unique

features.’’ Id., 92.

As we explained in part III of this opinion, in the

present case, the trial court denied Whelan’s request to

require the defendant to pay the entirety of Rutkin’s

fees. As a result, Whelan was obligated to pay Rutkin

$33,346 of the $33,883.26 of her fees for proceedings in

which she claims the defendant committed litigation

misconduct. On the basis of this fact, we conclude that

Whelan has standing to pursue her claim of litigation

misconduct.

B

We next turn to Whelan’s claim that the trial court

improperly applied the standard set forth in Ramin v.

Ramin, supra, 281 Conn. 324, to her claim of litigation misconduct.

As we recently explained in Berzins v. Berzins, 306

Conn. 651, 657, 51 A.3d 941 (2012), ‘‘[t]he question of

whether Ramin applies to [nondiscovery litigation misconduct related to claims for attorney’s fees under

§ 46b-62] is a ‘question of law subject to our plenary

review.’ Fish v. Fish, 285 Conn. 24, 37, 939 A.2d 1040

(2008).’’

Although our opinion in Berzins v. Berzins, supra,

306 Conn. 657, was not available to the trial court at

the time it ruled on Whelan’s claim of litigation misconduct in the present case, we find it dispositive of Whelan’s claim before this court. We note, however, that

Maris v. McGrath, supra, 269 Conn. 845–46, the case

upon which Berzins was based, was available to the

trial court at the time of the hearing. In Berzins, the

defendant appealed from the judgment of the Appellate

Court affirming the trial court’s award of attorney’s fees

to the plaintiff, claiming that the trial court improperly

relied on Ramin. Berzins v. Berzins, supra, 653. We

concluded that the trial court’s award of attorney’s fees

based on nondiscovery litigation misconduct was not

governed by Ramin, but that the trial court should

have been guided by Maris v. McGrath, supra, 845–46.

Berzins v. Berzins, supra 658–59. Specifically, we concluded that Ramin was limited to discovery misconduct

and did not apply to postjudgment litigation misconduct. Id.

As we explained in Berzins and previously in this

opinion, ‘‘ ‘[t]he common law rule in Connecticut, also

known as the American Rule, is that attorney’s fees and

ordinary expenses and burdens of litigation are not

allowed to the successful party absent a contractual or

statutory exception.’ . . . Commissioner of Environmental Protection v. Mellon, [286 Conn. 687, 695, 945

A.2d 464 (2008)]. One such exception is the inherent

authority of a trial court ‘to assess attorney’s fees when

the losing party has acted in bad faith, vexatiously,

wantonly or for oppressive reasons.’ Schoonmaker v.
Lawrence Brunoli, Inc., [265 Conn. 210, 253, 828 A.2d

64 (2003)].’’ Berzins v. Berzins, supra, 306 Conn. 661.

‘‘We most recently explained the narrow scope of

this exception in Maris v. McGrath, supra, 269 Conn.

848, in which we upheld a trial court’s determination

that attorney’s fees should be awarded to the defendant

because the trial court had found both that the case

was ‘wholly without merit’ and that ‘the plaintiff repeatedly had testified untruthfully and in bad faith.’ We

reiterated principles that this court previously had articulated indicating that a litigant seeking an award of

attorney’s fees for the bad faith conduct of the opposing

party faces a high hurdle. Specifically, quoting our previous decision in CFM of Connecticut,Inc. v. Chowdhury,

239 Conn. 375, 393, 685 A.2d 1108 (1996), overruled in

part on other grounds by State v. Salmon, 250 Conn.

147, 154–55, 735 A.2d 333 (1999), we stated: ‘We agree,

furthermore, with certain principles articulated by the

SecondCircuitCourt of Appeals in determining whether

the bad faith exception applies. To ensure . . . that

fear of an award of [attorney’s] fees against them will

not deter persons with colorable claims from pursuing

those claims, we have declined to uphold awards under

the bad-faith exception absent both clear evidence that

the challenged actions are entirely without color and

[are taken] for reasons of harassment or delay or for

other improper purposes . . . and a high degree of

specificity in the factual findings of [the] lower courts.

. . . Whether a claim is colorable, for purposes of the

bad-faith exception, is a matter of whether a reasonable

attorney could have concluded that facts supporting

the claim might be established, not whether such facts

had been established. . . . To determine whether the

bad-faith exception applies, the court must assess

whether there has been substantive bad faith as exhibited by, for example, a party’s use of oppressive tactics

or its wilful violations of court orders; [t]he appropriate

focus for the court . . . is the conduct of the party in

instigating or maintaining the litigation.’ . . . Maris v.

McGrath, supra, 845–46.’’ Berzins v. Berzins, supra,

306 Conn. 662–63. ‘‘Maris makes clear that in order to

impose sanctions pursuant to its inherent authority, the

trial court must find both that the litigant’s claims were

entirely without color and that the litigant acted in bad

faith.’’ (Emphasis in original.) Id., 663.

In the present case, the trial court explicitly indicated

that it was considering Whelan’s claim of litigation misconduct under the legal principles enunciated in

Ramin. Indeed, the trial court never mentioned Maris

in its memorandum of decision. Therefore, the trial

court did not make the required findings under Maris

and, consequently, Whelan is entitled to a new hearing

at which the trial court applies the proper standard.

The judgment in SC 18994 denying Whelan’s motion

for permission to appeal on behalf of the minor children
is affirmed; the judgment in SC 18993 granting in part

Whelan’s motion for her attorney’s counsel fees pursuant to § 46b-62 is reversed and the case is remanded

with direction to deny that motion; the writ of error

in SC 18942 is granted in part, the judgment denying

Whelan’s motion for counsel fees and sanctions for

litigation misconduct is reversed, and the case is

remanded for further proceedings on that motion in

accordance with the preceding paragraph; the writ of

error in SC 18942 is denied in all other respects.

In this opinion the other justices concurred.

1 For the sake of simplicity, we refer to Ruth F. Perry as the plaintiff,

Stephen C. Perry as the defendant, and to Whelan by name. We note that

the plaintiff is not a party to this appeal.

2 Although § 46b-62 was the subject of technical amendments in 2011; see,

e.g., Public Acts 2011, No. 11-214, § 7; those amendments have no bearing

on the merits of this appeal. In the interest of simplicity, we refer to the

current revision of the statute.

3 We note that Whelan was appointed as the attorney forthe minor children

on September 20, 2006.

4 The defendant also appealed from the judgment of the trial court granting

the plaintiff’s motion for clarification as to the division of the parties’ property. Perry v. Perry, supra, 130 Conn. App. 729. The Appellate Court reversed

the judgment of the trial court as it related to the plaintiff’s motion for

clarification as to the division of the parties’ property. Id., 734.

5 General Statutes § 46b-62 provides: ‘‘In any proceeding seeking relief

under the provisions of this chapter and sections 17b-743, 17b-744, 45a-257,

46b-1, 46b-6, 46b-212 to 46b-213w, inclusive, 47-14g, 51-348a and 52-362, the

court may order either spouse or, if such proceeding concerns the custody,

care, education, visitation or support of a minor child, either parentto pay the

reasonable attorney’s fees of the other in accordance with their respective

financial abilities and the criteria set forth in section 46b-82. If, in any

proceeding under this chapter and said sections, the court appoints an

attorney for a minor child, the court may order the father, mother or an

intervening party, individually or in any combination, to pay the reasonable

fees of the attorney or may order the payment of the attorney’s fees in

whole or in part from the estate of the child. If the child is receiving or

has received state aid or care, the compensation of the attorney shall be

established and paid by the Public Defender Services Commission.’’

6 The defendant also asserts that the trial court’s decision refusing to

order him to pay a portion of Rutkin’s fees should be affirmed on the

alternative ground that the trial court had no authority under § 46b-62 to

order him to pay any of those fees. Because we resolve the issue raised in

the defendant’s appeal regarding § 46b-62 in his favor and determine that

§ 46b-62 does not authorize the award of any portion of Whelan’s counsel’s

fees, we need not address the defendant’s alternative ground for affirmance.